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Case # G0187861
Date of Accident: 08/13/2009
District Office: NYC
Employer: Karl's Plumbing, Inc.
Carrier: Travelers Indemnity Company
Carrier ID No.: W212252
Carrier Case No.: 506-CB-AHE1918-M
Date of Filing of Decision: 04/05/2013
Claimant's Attorney: Fine, Olin & Anderman P.C.
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on March 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on May 31, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant remains attached to the labor market.

In a decision filed on January 28, 2011, the Workers' Compensation Law Judge (WCLJ) found that the claimant has remained attached to the labor market through his involvement with Work Force One and additional job search activities performed on his own.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member found that the claimant had made an insufficient effort to obtain employment within his restrictions.

On July 2, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that as found by the dissenting Board Panel member, it is clear from the evidence and testimony that the claimant has not remained attached to the labor market.

On July 17, 2012, the claimant filed a rebuttal, asserting that he has made sufficient efforts to remain attached to the labor market, and thus, the majority opinion should stand.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

On August 13, 2009, claimant, then a 31-year-old plumber, was injured while fixing a waste pipe at work. This case was established for an injury to the claimant's back.

The claimant has not been classified permanently partially disabled. The carrier raised the issue of labor market attachment at a hearing on October 26, 2010, and the case was continued for the testimony of the claimant.

In an IME report dated August 5, 2010, the carrier's consultant, Dr. Meinhard, indicates that the claimant has a marked degree of disability. Dr. Meinhard further notes that the claimant's prognosis in the absence of operative intervention for his lumbar instability and bilateral spondylolysis and spondylolisthesis is poor. With respect to the claimant's work potential, Dr. Meinhard opined that the claimant could do light duty sedentary work no more than four hours a day. He further stated that the claimant cannot bend, squat, crawl or climb. He has to work in a controlled environment on a level surface. He can lift 15 pounds frequently.

In a medical report dated December 30, 2010, the claimant's treating physician, Dr. Cimino, indicated that the claimant presented with continued low back pain on that date. The claimant indicated he has trouble getting in and out of bed, sitting, driving, pushing, pulling, lifting, bending, and sleeping due to pain. Dr. Cimino noted that that the claimant was reluctant to have surgery despite concurrent opinions from three neurosurgeons recommending a lumbar surgical procedure. The report indicates that the claimant has not returned to work since the work injury. The report further indicates that the claimant's degree of temporary impairment is 75%. Work restrictions are not listed in the report.

The claimant has not been classified permanently partially disabled. The carrier raised the issue of labor market attachment at a hearing on October 26, 2010, and the case was continued for the testimony of the claimant.

At a hearing on January 10, 2011, the claimant testified that he registered with Work Force One in November of 2010 and had returned to the agency three or four times. He was told by the counselors at Work Force one that they could show him how to make a resume. In addition, the claimant has submitted job applications on his own. He has been on three or four interviews. The claimant had an interview pending for the day after the hearing at a plumbing company, where he hoped to discuss job oversight duties despite applying for the position of plumber. The claimant further noted that he had been told by his treating physicians that he could only work light duty, which did not include working as a plumber. The claimant conceded that he had not applied for any light duty jobs. Rather, the claimant had applied for plumbing jobs. He looked for these jobs in the newspaper in the plumbing section of the classifieds. He does not conduct computer searches for jobs because his computers are broken. The claimant gave the names of the people he spoke to regarding the plumbing jobs, but he did not have any documentation regarding his job search, as he was not aware he needed to bring it.

Following the completion of testimony, the WCLJ found the claimant's testimony to be credible and ruled that he had remained attached to the labor market by virtue of his involvement with Work Force One and his independent job search. The WCLJ directed an award from October 27, 2010, to January 11, 2011, and continuing thereafter, at a tentative rate of $230.00. These findings were memorialized in a decision filed on January 28, 2011.

LEGAL ANALYSIS

A claimant with a temporary partial disability must look for work within the limits of his or her partial disability or otherwise demonstrate a sufficient attachment to the labor market (Matter of Robert D. Anderson Co Inc, 2012 NY Wrk Comp G0016823; see generally Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]).

Here, for the time period in question, the claimant was temporarily partially disabled. Accordingly, he had the burden of demonstrating an attachment to the labor market by seeking employment within his medical restrictions, and for which he was qualified.

Attachment to the labor market can be demonstrated by credible documentary evidence showing that claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; or is actively participating in a job-location service such as (1) New York State's Department of Labor's re-employment services, (2) One-Stop Career Centers, or (3) a job service commonly utilized to secure work within a specific industry; or is actively participating in vocational rehabilitation through Adult Career and Continuing Education Services - Vocational Rehabilitation (ACCES-VR) f/k/a VESID or other Board-approved rehabilitation program; or is actively participating in a job-retraining program; or is attending an accredited educational institution full time to pursue employment within the work restrictions (Matter of American Axle, 2010 NY Wrk Comp 80303659).

As to the requirements for a valid independent job search, the Board has set forth the following criteria: if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer. (Matter of American Axle, 2010 NY Wrk Comp 80303659).

Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve (Matter of Rothe v United Med. Assoc., 18 AD3d 1093 [2005]). As the Court of Appeals held in Zamora, 19 NY3d 186 (2012), "[b]y finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again" (id.).

Here, the claimant testified that in his attempt to find employment within his restrictions, he sought the assistance of One-Stop and conducted an independent job search to find work within his restrictions. However, he failed to provide documentary evidence to support his job search efforts and thus has fallen short of the standard set forth in American Axle (see Matter of Advance Auto Parts, 2012 NY Wrk Comp G0218238).

Therefore, the Full Board finds, based upon a preponderance of the evidence, that the claimant has not made a sufficient effort to find work within his restrictions, and therefore, has not remained attached to the labor market.

CONCLUSION

Accordingly, the WCLJ decision filed on January 28, 2011, is REVERSED. No further action is planned by the Board at this time.